Incorporation of the UNCRC into Scots Law: What, How and Why?

This post by Dr Kasey McCall-Smith looks at the  recent Scottish Government consultation on incorporation of the UN Convention on the Rights of the Child (UNCRC) into Scots law. It introduces basic incorporation concepts and the draft Children’s Rights (Scotland) Bill submitted to the Government by the Expert Advisory Committee on UNCRC Incorporation convened by the CYCPS and Together, of which Dr McCall-Smith is a member. This discussion is a starting point to an ESRC Impact Acceleration grant project entitled ‘Incorporating Human Rights in Scotland’ which runs September 2019 – March 2020. 

Incorporation of the UNCRC into Scots Law: What, How and Why?

For many years, Scotland has worked to secure a strong law and policy foundation for the protection of children’s rights. These efforts, while commendable, have created a patchwork system of protections for children and equally inconsistent opportunities for children in Scotland to exercise rights that the majority of adults hold most dear, such as the freedom of expression, freedom from assault and participation in decision-making processes. International children’s rights practice confirms that the first step in securing the broad range of rights for children is through the incorporation of the UN Convention on the Rights of the Child (UNCRC). Across 54 articles the UNCRC protects civil, political, economic, social and cultural rights, encourages a holistic approach to addressing issues that affect children and seeks to offer balance when children’s rights at odds with other rights holders, such as parents or guardians.

As a party to the UNCRC since 1991 the UK has a legal obligation to ensure that all domestic legislation is compatible with the international agreement yet the UK has done little to collectively make children’s rights a priority through legislation. Thus, devolved UK nations, including Scotland and Wales, have individually made political and legal commitments to further entrench children’s rights in line with the UNCRC. To this end, earlier this year, the First Minister pledged to incorporate the UNCRC into Scots law. This pledge set in motion variable activities across government, Scottish Parliament and civil society to determine what this means and how best this is to be achieved in Scotland. A key problem is that very few law and policy makers have ever had the opportunity to go through the technicalities of incorporating a piece of international law – a human rights treaty – into national law.

Consultation Paper seeking comment by the public was released by the Scottish Government in May 2019 as a prelude to UNCRC incorporation. The following examines some of the consultation’s subject matter.

What is incorporation?

A simple explanation of incorporation in the context of a human rights treaty such as the UNCRC is that it is a narrow conception of human rights implementation, which ensures direct application and enforceability of the rights in national law. ‘Direct application’ means that the UNCRC provisions are capable of being invoked in national courts and must be applied by government institutions. ‘Enforceability’ generally refers to the availability of institutions, such as courts or other administrative agencies, and procedures to provide a remedy for the breach of a right.

The consultation paper correctly notes that there is no single method of implementation, however implementation and incorporation are two different legal concepts that should be clarified. The Committee on the Rights of the Child (CRC Committee) has often reiterated that direct incorporation is the first step toward effective implementation while implementation represents the collective legal, policy and social initiatives that support the realisation of a right. Incorporation is effectively the entry point to realising children’s rights.

How do we achieve incorporation?

Incorporation can be achieved through a variety of methods. The options include direct incorporation, indirect incorporation (what the Government has incorrectly termed ‘transposition’) and piecemeal/sectoral incorporation as well as a host of options in between. Scotland has followed a piecemeal/sectoral approach thus far.

Direct incorporation is a term that has long been used in the UK and internationally to identify legislative practice of taking a piece of international law – in this case the UNCRC – and transposing it, or embedding it, directly into UK law using the verbatim language of the treaty, much like the Human Rights Act 1998 model did with the European Convention on Human Rights. It has many advantages as it ensures the rights remain comparable to those in the UNCRC rather than an alternative version, such as the option suggested in the Scottish Government’s consultation.

Indirect incorporation means that the treaty is either incorporated by another constitutional convention or that it is incorporated in some way that does not equate to direct incorporation. There are many variables in this option and the Scottish Government has identified this as ‘transposition’, which demonstrates the confusion around incorporation as it uses the word ‘transposition’ incorrectly. Transposition is not an appropriate word if talking about ‘redefining’ an international convention. This takes away an anchor to the language of the UNCRC that has been interpreted by the CRC Committee as well as across the 196 countries that are party to the treaty.

Piecemeal or Sectoral incorporation is the practice where different rights of the convention are incorporated into legislation that is sector specific, such as disabilities or criminal justice legislation. While effective in many instances, this approach results in large gaps in children’s rights protection.

The draft Children’s Rights (Scotland) Bill follows a direct incorporation model much like the HRA 1998 but going further to expand on important aspects that are necessary to fully protect children’s rights. The three part draft bill was developed by an advisory committee of experts on both children’s rights, constitutional law and international law. The advisory committee was convened by the Children and Young People’s Commissioner Scotland (CYCPS) and Together (Scottish Alliance for Children’s Rights).

Part I clarifies that the bill is about wholesale, direct incorporation. It sets out a clear framework of rights against which the relevant government authorities and the Scottish Parliament can check themselves to ensure that they have considered the wide range of children’s rights that could be impacted by government action, law or policy. It ensures that children’s rights are considered at the earliest stage of law and policy development.

It includes all articles of the UNCRC and the articles of the Optional Protocols to which the UK is party. Notably, if the UK ratifies further optional protocols, these could be added by order of the Scottish Ministers. The draft bill clarifies the relevant duty-bearing authorities, including Scottish Parliament, Scottish Ministers, any authority exercising functions in areas of law or policy devolved to Scotland and all Scottish public authorities.

Part I fulfils the Scottish Government’s political commitment to incorporate the UNCRC in Scotland in a proactive manner, rather than ad hoc or ill-defined rights that have no resonance with well-established jurisprudence. Notably, it highlights the many sources of interpretation sources available to interpret the UNCRC that already exist.

Part II delivers the real teeth of the bill, which makes it unlawful for relevant authorities to act incompatibly with the Convention or optional protocols. This is the reactive section of the bill, which complements the proactive approach described below and follows the Human Rights Act model. It requires all bills to include a statement of compatibility with the UNCRC, building on the existing CRWIA system, which while a strong commitment under the 2014 Children and Young Persons (Scotland) Act, has proven inconsistent in practice. It also includes enforcement through the legal system, including redress and remedies, and strike down powers for inconsistent legislation. Crucially, it recognises the standing of children and a range of further stakeholders in terms of judicial review, which is important in terms of public interest litigation that could aid in pre-empting harm. There is widespread acknowledgement that unless there is a remedy, there is no right. International practice has confirmed that simply because remedies exist, litigation floodgates will not be opened. In line with the proactive and reactive strategy behind the draft bill, litigation is a last resort but is absolutely necessary to make rights real for children and young people. Simply because rights will be reinforced by the bill and remedies will now be clearly available, it does not mean that children will be lining up to litigate. The point of the combined proactive and reactive strategy is that all relevant government authorities will think through the impact on children before missteps are taken.

Part III is the proactive section of the draft bill. It places a due regard duty on all relevant authorities providing the opportunity to ensure children’s rights are protected from the birth of a new law or policy. But as Welsh practice has demonstrated, due regard alone is not enough. It is simply one piece of the puzzle. Thus the draft bill enhances the due regard duty by requiring a Children’s Rights Scheme that requires child involvement in the development of new law and policy and requires consultation with the CYCPS – why would government and parliament ignore advice from the expert on children’s rights? The draft bill reflects international practice in some of the strongest children’s rights forward jurisdictions.

The draft bill also requires reports on compliance with the due regard duty to be laid before the Scottish Parliament every three years and that reporting is delivered in an accessible, child-friendly version. Without self-reflection and children’s participation, Scotland cannot be the best place for children to grow up.

Why incorporate the UNCRC?

As has been consistently advocated by the CYCPS, Together and the expert advisory group that has been working with the them for many months, full and direct incorporation is the preferred model for fully realising children’s rights in Scotland. The UNCRC framework is a trusted reference point, it has an established, identifiable body of interpretive jurisprudence not only in the UK but across the world, and gives extensive consideration to the basic needs of children across mainstream rights platforms as well as those children’s rights that are marginalised for any number of reasons. To be clear, the UNCRC is a floor, not a ceiling, and the language used in the Convention confirms that governments must do more than pay lip-service to the Convention if they are to fully deliver a legal landscape that promotes, protects and fulfils children’s rights and an environment where ALL children thrive.

The First Minister has claimed she would like Scotland to meet ‘the UN’s gold standard on children’s rights.’ Full and direct incorporation of the UNCRC is the most appropriate way to ensure that Scotland achieves this goal.

Off the Record: Medical Records in the 9/11 Military Commission

This post continues the blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Personal Data and National Security: Medical Records in the 9/11 Military Commission

Almost since the inception of the 9/11 military commissions, defense lawyers have fought to obtain the full medical records of their clients. In any normal court, a client’s ownership and access to their personal medical records would go unchallenged. The right to privacy is fairly clear on this. Whether relying on the Fifth and Fourteenth Amendments of the US Constitution or article 17 of the ICCPR, individuals have the right to control their personal medical information with some exceptions (notably those outlined in HIPAA in the US). However, in the largest criminal justice trial in US history, access to medical records is shrouded in secrecy and national security privilege is reinforced through redactions to files covering even the simplest of medical treatment, such as providing ibuprofen for pain relief.

Joint Task Force Guantánamo, the cross-branch military force created by the US Department of Defense to run detention operations in Guantánamo, is responsible for assessing and delivering care for the medical needs of all detainees. As a result, it maintains full medical records on the 40 men still held in the detention facility. Government prosecutors also have copies of the full records. However, neither the defendants, nor their attorneys, are able to gather a full account of their medical information because full access is consistently rejected by the Government in the name of national security.

The complete medical records sought begin with those documenting the intake of the defendants in 2006 when they arrived in Guantánamo following years on CIA black sites. The records covering the medical treatment of the five 9/11 defendants is crucial to the case due to the systematic torture they endured at the hands of the CIA and the statements of guilt some are alleged to have given to the FBI shortly after arriving in Guantánamo. The physical and psychological impact of the enhanced interrogation techniques on the men, as documented in the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Summary Report) further speaks to a range of issues that are highly relevant to the trial, not the least their ability to participate in their own defence and their competence to even be in the dock.

A primary point of contention comes in response to the public availability of the record of torture, inhuman and degrading treatment the defendants suffered on black sites. The SSCI Summary Report is very clear on the issue of the defendants’ treatment. The CIA shredded all pretence in terms of legality with regard to the treatment of these five men and many others. Constructing an understanding of their physical and mental states in the lead up to the FBI interrogations in January 2007 will shed light on whether those statements may be excluded as torture evidence, an issue that remains unclear at the close of the 35th round of pre-trial hearings.

Redacted medical records

While there is a great amount of writing and authority on the issues of confidentiality, privacy and security of medical records, those discussions are predominantly focused on keeping personal records closed for the benefit of the patient. In the 9/11 case, the reverse is true. Defense teams have spent years trying to gain full access to their clients’ personal medical files. In many instances it is not only about their variable litigation strategies but also about helping explain their client’s individual health issues to them more fully. As has often been raised in court, a number of the defendants suffer conditions akin to post-traumatic stress disorder and there have been suggestions of brain damage following MRI scans, all indicia of the ill-treatment they endured in CIA captivity.

Trial counsel for the government has turned over 47.000 pages of medical history to the defendants relating to medical, psychological, dental or therapist visits since their arrival in Guantánamo. The problem is that all of the documents are redacted to some extent and predominantly it is medical personnel identifiers that are removed. With the exception of seven real name examples Government counsel acknowledged as ones he had ‘missed’ in error, all names have been replaced by unique medical identifiers (UMIs) or redacted to obscure the identification. The UMIs include designators such as Dr Shrek, SMO (Senior Medical Officer) and Dr 10. More vexing for defense counsel is the fact that several of the UMIs are not unique at all. As counsel argued before the commission, in the course of their examination of the records provided by the Government, it has become clear that the same UMI was used by different medical professionals in some cases and in others individuals had used different UMIs in a haphazard way. This inconsistency frustrates defense efforts to piece together a clear picture of their clients’ physical and mental states when they arrived fresh from their years on black sites as they are unable to corroborate the information derived from the incomplete reports.

Persistent threats to medical personnel?

The Government contends that these men pose a direct threat to the safety of medical personnel and their families. It is an interesting argument considering the defendants’ long-term address in the top-secret, maximum security Camp 7 where the very limited communication they have with the outside world is subjected to extensive security and classification reviews. Government counsel went as far as to claim that threats against medical personnel are made ‘practically every day, certainly at least once a month’, suggesting that they were made by the men for whom the military medical corps has provided care for roughly 11 years. It is unlikely that evidence of these ‘threats’ will ever be seen by the public. Such evidence, if it exists, may be proffered through ex parte submissions to the judge anytime prosecution invokes the national security privilege. Defense efforts to substantiate claims of the threats have been fruitless and, according to counsel, none of the few medical personnel that have been tracked down have suggested that they were ever threatened in the course of their treatment.

In-court exchanges suggest that all government explanations of medical records are to be taken at face value despite multiple proffers of error by defense counsel. The more bizarre fact is the Government admission in previous commission exchanges that medical records including the names of medical professionals, is not classified material. Even if classified, or marked as sensitive, the legal team members all have the clearance to view the full documents. In a case heavily dependent on classified material, it is not uncommon for the cleared lawyers to access materials for investigation purposes without sharing the information with their clients. It, therefore, boggles the mind that the Government continues to deny defense counsel information necessary to fully investigate each defendant’s case. It seems solely obstructive that defense counsel is forced to argue for access to full medical records bit by bit as the responsive records provided after each successful motion provides only a bit more information than before. Very simply, the Government should provide unclassified information when requested through discovery.

The tussle over complete medical records appears to be a circular exercise. No logic can explain the stalemate in relation to complete medical records for the 9/11 defendants. And with a third judge due to assume control of the case at the 36th round of hearings in June 2019, the issue is likely far from over.

Off the Record: 9/11 Military Commission in its 7th Year

This is the third post in a blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Whatever Happened to the Alleged 9/11 Terror Plotters? 9/11 Military Commission in its 7th Year

The largest criminal justice trial in US history is currently taking place on Naval Station Guantánamo Bay. For the most part, the general public has no idea. Apart from consistent media coverage by a small handful of journalists, including Carol Rosenberg (formally of The Miami Herald and now with the New York Times) and John Ryan of Lawdragon, the US public and the formerly vocal academy have forgotten that five men, Khalid Shaikh Mohammad, Khallad bin Attash, Ammar al-Baluchi, Ramzi Bin Al-Shibh and Mustafa al-Hawsawi, are charged with conspiracy to commit various war crimes and terrorism in relation to the September 11th attacks under the Military Commissions Act 2009 (MCA) in United States v. Khalid Shaikh Mohammad, et al. (9/11 case). In previous blogs I have explained the choice of venue for the detention facility, law of war detention, details on some of the detainees, and addressed issues relating to torture. This series looks in more detail at specific issues in the trial and why controversial legal stand-offs may not go away.

The first incarnation of the military commissions were replaced by the MCA following the US Supreme Court decisions in Hamdan v. Rumsfeld and Boumediene v. Bush. The MCA applies to alien terrorist suspects and members of al Qaida, defined as alien ‘unprivileged enemy belligerents’, rounded up from 2002-2008, though recently there has been talk of the potential use of the statute to detained ISIS fighters.

 

The MCA sets out its applicability to offences before, on and after 11 September 2001 and raises questions about the long-standing principle of no ex post facto laws and the creative addition of ‘conspiracy’ to accepted war crimes definitions. The statute combines different and overlapping issues of military law, constitutional law and international law. Observing the 9/11 hearings, the failure to thoroughly evaluate the relationship between these different legal systems is proving problematic in every aspect of the trial’s slow progress. The only clarity lies in the fact that legislative responses to 9/11 were walled off from the realities of the outrageous conduct of the CIA during its Rendition, Detention and Interrogation programme.

According to the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Report), it is well documented that Khalid Shaikh Mohammad was subjected to combinations of ‘enhanced interrogation techniques’, so-called EITs, equating to torture designed to exercise total control over the victim. Notably, he suffered periods of sleep deprivation lasting up to 180 hours and was ultimately waterboarded 183 times. The other four defendants were similarly treated. Bin Al-Shibh was subjected to EITs for approximately 34 days and kept in social isolation for almost 2.5 years. Bin Attash and al-Baluchi were subjected to EITs over a period of months. The CIA waterboarded al-Hawsawi and further subjected him to such brutal bodily treatment that he suffers irreparable physical damage. In short, US agents subjected each of them to a sustained and systematic programme of torture in direct violation of US and international law.

The illegal actions by the US were defended by the then Bush Administration as necessary to national security. When rumours and then evidence of ill-treatment began to leak out of US military bases abroad, international civil society and US civil rights groups called for the US, as well States working in concert with the US, to maintain detention and treatment standards demanded by the law. In particular, the customary Law of War and standards outlined in the Geneva Conventions as well as the Convention Against Torture were frequently invoked. Yet as the first detainees arrived in Guantánamo on 11 January 2002 these well-established rules appeared to be the furthest thing from the US government’s mind. For anyone watching as the first goggled and shackled jumpsuit-clad men dropped to their knees in the Cuban heat it was clear that this would be a long game. Of the approximately 780 men that were detained in Guantánamo since it opened the doors to the now defunct Camp X-Ray (pictured below), only 40 remain. One man (Balhul) is serving his sentence following conviction by military commission, 26 are known as ‘forever prisoners’ and eight are currently under charge, including the 9/11 defendants. The 9/11 charge sheet alleges that the defendants committed conspiracy, attacked civilians, and committed murder in violation of the Law of War, intentionally caused serious bodily harm, hijacked an aircraft, and committed acts of terrorism resulting in the deaths of 2.976 along with countless injuries. Following their arraignment on 5 May 2012, intentionally causing serious bodily injury was struck from the charges in the early months of the case. From the outset, issues regarding public access to the trial were raised. Limited public access to close circuit broadcast sites was offered to families soon after the litigation commenced. Though now only a trickle of viewers attend the 40 second delayed live-streams at Fort Meade, Fort Devens and Fort Hamilton. The roster of media and civil society observers at Camp Justice, too, can only be described as small when compared to the original outpouring of attention on the detention activities in Guantánamo.

In its 7th year of pre-trial proceedings, the 9/11 case is bogged down in a range of issues (see subsequent posts) that challenge the rule of law to its very core. How to reconcile the defendants’ status as both alleged terrorist war criminals and torture victims? Does US ‘reinterpretation’ of war crimes definitions square with the law of war? Can an appropriate balance between the alleged crimes and victimhood be achieved? Will the victims of 9/11 ever get the justice they deserve and, if so, at what cost? Seventeen years after the horrendous acts that markedly shifted western governments into a new era of aggressive national security pursuits, it seems that only time will tell. At the conclusion of the 35th round of hearings, we are left only with questions.